SCOW refuses to reconsider its previous decisions on mootness, holds that admission of hearsay evidence was harmless
Waukesha County v. R.D.T., 2026 WI 24, 6/30/26, affirming an unpublished decision of the court of appeals; case activity
SCOW refuses an invitation to retreat from previous decisions making it difficult for a Chapter 51 appeal to be moot but ultimately holds that R.D.T. is not entitled to relief as a result of the allegedly improper admission of hearsay evidence.
(See our prior posts here and here).
This is an appeal from an expired recommitment order. (“Ryden” has subsequently been recommitted). Accordingly, SCOW first addresses the issue of mootness, the basis COA’s decision denying relief.
SCOW begins that discussion by reciting its holding from the recent S.A.M. decision that “an appeal of an expired recommitment order is not moot because vacating the order would still have practical effects on two of the order’s collateral consequences.” (¶12). Specifically, a commitment order exposes the person to liability for costs of care under § 46.10(2) and impacts their right to possess a firearm under the Second Amendment. (Id.). Although the County takes aim at both justifications in this case, those arguments are ultimately unavailing.
First, as to costs of care, SCOW reiterates that the statute creates a mandatory financial responsibility for the committed person and that it is irrelevant whether collection actions have actually begun. (¶14). It is the “threat of potential collection” which is sufficient to create a collateral consequence rendering an appeal non-moot. (Id.). In a footnote, it therefore rebukes COA for holding exactly the opposite in this case by relying on the nonexistence of any collection action. (Id.).
To get around S.A.M., the County tries to shift the burden, asserting that Ryden has not proven this financial liability is “unsatisfied.” (¶15). SCOW is unpersuaded, as it is the County’s burden to prove mootness. (¶16). There is also nothing in this record which would demonstrate, as the County appears to suggest, “that the liability has been fully satisfied.” (Id.). Ryden’s appeal is therefore no different than S.A.M.’s. (Id.).
Moving to gun rights, the County argues that this case is distinguishable because Ryden has had multiple recommitment orders and, therefore, vacating only one such order will have no practical impact on his ability to regain his right to possess a firearm under § 51.20(13)(cv)1m.a. (¶19). SCOW refuses to budge from its holding in S.A.M. and holds that because the vacatur of one this order could have a “marginal” impact on his ability to regain his firearm rights, the appeal is not moot. (¶20). SCOW does not therefore see the need to address Ryden’s argument that “stigma” exempts the case from being moot. (Id.).
On the costs of care issue, it seems like SCOW has theoretically cracked the door open to an argument that, at least in some cases where the County presents affirmative evidence that no costs are due, its holding in S.A.M. will not apply.
But given the Court’s treatment of the firearm issue, does it matter? Here, SCOW clearly holds that even knocking out one in a series of extension orders will be sufficient to have a “marginal” impact on gun rights and therefore exempt the case from being moot. Unless SCOW is willing to consider extreme edge cases–perhaps a situation where a person has been committed for 20 times or more–as distinguishable, it feels a lot like SCOW has held that Chapter 51 appeals, because of their impact on Second Amendment rights, are never moot. Will the court of appeals, and D2 in particular, see things the same way? Only time will tell.
Moving to the substantive issue presented, SCOW holds that it does not need to assess whether the circuit court erred in admitting alleged hearsay evidence at this recommitment proceeding. (¶22). That’s because, assessing the record as a whole, any asserted error was harmless. (Id.). Unobjected-to testimony “strongly supports” the circuit court’s order continuing Ryden’s commitment and SCOW affirms. (¶26).
Concurrence
Justice Dallet, joined by Chief Judge Karofsky and Justice Protasiewicz, files a short concurrence with an expansive discussion of hearsay evidence in recommitment hearings. The concurrence rejects the County’s arguments that the recommitment standard is itself a hearsay exception, finding that the text of the statute does not support that reading. (¶31). It also rejects the County’s argument that the recommitment standard will be rendered meaningless unless it is permitted to rely on hearsay evidence in such proceedings. (¶35). The concurrence reiterates that, like any other civil proceeding, the rules of evidence necessarily apply and that the County has other ways of proving dangerousness instead of merely relying on hearsay testimony in treatment records. (¶38).
This is a common argument of County respondents in Chapter 51 appeals. This concurrence should therefore be carefully reviewed and set aside for any litigator challenging the admission of hearsay in such a proceeding.
Dissent
Justice Ziegler, joined by Justice Bradley, writes separately to highly that S.A.M.‘s mootness holdings are “unsound in principle” and should be overturned. (¶43). She also writes separately to criticize Ryden’s stigma argument and to highlight that S.A.M. has “flooded” the system with appeals that have no practical impact on the persons at issue. (¶47).